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The expanding congregation of Christian Assembly Rios de Agua Viva sought a new home for their church in suburban Chicago, Illinois and began a three-and-a-half year search that ultimately led them to a four-acre property within the commercial zoning district in Burbank, Illinois. The district allowed 114 by-right uses including many non-religious assembly uses such as dance studios, physical fitness facilities, and undertaking/funeral parlors, but requires a special use permit for a church. On October 8, 2010, the Church applied for a special use permit. Upon review of the application, city staff recommended that the Zoning Commission deny the special use permit because  “the property was ‘the last large “C” district parcel left in Burbank for development’ and felt ‘it is not in the best interest of the community due to the loss of the historic use and tax monies.’”

On November 12, 2010, the Church submitted a letter to the Zoning Commission through its attorneys explaining that the zoning ordinance violated RLUIPA’s equal terms provision and the equal protection clause of the Fourteenth Amendment because it required a special use permit for churches but allowed other assembly uses as of right in the commercial district. Around the same time, the City proposed an amendment to the ordinance limiting both by-right and special uses in the commercial district to “commercial retail stores, service establishments, and professional offices that generate tax revenues, maintain the City’s tax base, and allow for convenient locations for the public to shop, obtain services and conduct business”, thus making the intended church use a prohibited use. Churches and other places of worship remained allowed uses, either by right or special use permit, in all residential zones. The City Council voted to approve the zoning amendment on December 15th. At a January 26th meeting, the City Council unanimously voted to deny the Church’s special use permit on the grounds that the amended ordinance did not allow the use in the commercial district.

The City sought summary judgment on the Church’s RLUIPA substantial burden and equal terms claims, equal protection claim, and the free exercise claim. The Church sought a ruling on its RLUIPA equal terms claim, based on the pre-amendment ordinance. The Court dismissed the substantial burden and free exercise claims, finding that the Church experienced the inconvenience typical of a discretionary zoning process. Because the Church had no reasonable expectation of using the property for religious purposes, any delay or expense did not constitute a substantial burden. However, the court did find merit in the Church’s equal terms claim because the pre-amendment ordinance  allowed non-religious assembly uses by right in the commercial district while requiring a special use permit for churches; without providing a legitimate reason to support treating these uses differently. The Court held that the Church was entitled to damages because if it had not been for inequities between religious and non-religious assembly uses in the prior ordinance, the Church would have been able to operate without conditions. A jury trial was scheduled to assess the amount recoverable for the equal terms violation and to hear the Church’s equal protection cause of action, which the Court found was inadequately briefed on summary judgement. A settlement conference however, is set for May 4, 2017.

The Court’s decision in Christian Assembly Rios de Agua v. City of Burbank, IL is available here.

Original photo by Zol87, some rights reserved.